Agenda item

Purpose: To consider the motion submitted to Council by Councillor Lee Dillon, and subsequently referred to OSMC for consideration, that the Executive acted outside of the Council’s existing policies on Green Infrastructure in relation to the Faraday Road development.

(Councillor Adrian Abbs declared a personal interest in Agenda item 6 by virtue of the fact that he was a Ward Member for the proposed alternative location of the football ground at Monks Lane. As his interest was personal and not prejudicial he was permitted to take part in the debate and vote on the matter).

(Councillor Tony Vickers declared a personal interest in Agenda item 6 by virtue of the fact that he was a Member of Newbury Town Council which had a well-known view on the London Road Industrial Estate. As his interest was personal and not prejudicial he was permitted to take part in the debate and vote on the matter).

The Commission considered a report (Agenda Item 6) concerning the Motion that Councillor Lee Dillon had referred to Council on 8 July 2021. It was noted that Council had subsequently referred the matter to OSMC for consideration.

Councillor Tony Vickers explained that the Motion related to how the Executive had acted in regard to the Local Planning Authority’s policies, specifically CS18 on Green Infrastructure (GI). The Motion sought to hold the Executive account for the way it had managed this key asset and taxpayers’ money in the light of planning policy.

Councillor Vickers noted the statement in the report that no decision had been made in relation to the football club site at Executive. However, he indicated that Executive had taken many decisions on this matter. He noted that the Planning Authority had yet to make a decision, but this was a different body.

He stated that the Executive acted as landowner / promoter of the site and was custodian of public funds / assets including the London Road Industrial Estate (LRIE), of which the football ground was a key part until planning policy was formally changed.

He indicated that professional planners and lawyers were paid to manage the development plan process and development management. He stated that there was no policy in place to support the Executive’s aspiration, as highlighted in the Avison Young report.

He suggested that an outline application for the whole LRIE site should be brought forward together with the proposal to reprovide football facilities on another site.

He acknowledged that OSMC was unable to scrutinise decisions by planning committees, but stressed that it could scrutinise the Executive’s decisions on its use of taxpayers’ money and its actions in the light of planning policy. Therefore, he suggested that the report was misleading.

He suggested that as a result of the decision to relocate the football ground, millions of pounds of public money and officer time and 10 years of business rates income had been spent, committed or foregone – all contrary to planning policy, specifically in relation to GI.

He highlighted that an independent planning professional had written to the Secretary of State requesting him to intervene.

While Councillor Vickers acknowledged that there would be no immediate loss of GI associated with the current application, he highlighted the considerable harm to the site’s use and enjoyment as a result of the Executive’s actions contrary to planning policy (i.e. public shut out, stands removed, clubhouse burned down). He accepted that converting the football ground to an informal recreation area may mitigate some of the harm, but only until the LRIE development commenced. He suggested that this was only being done to remove the site’s status as a football ground.

He indicated that the proposal would be an exception in GI terms, and if approved, it would set a precedent. Even for exceptional cases, new GI must be provided in an accessible location close-by, and he felt that Monks Lane did not satisfy these criteria. Also, he felt there was no certainty that the Monks Lane site would gain planning permission.

He considered that it would be a poor example to others if the Local Planning Authority (LPA) allowed one planning application in the hope that the Monks Lane application would also be approved.

He noted that the Monks Lane proposal would be less valuable in terms of GI, since the new artificial pitch would be an “ecological desert”.

In summary, he stated that the Executive proposals would involve a net loss of area and quality of GI. Although in accordance with the Playing Pitch Strategy, it was not in accordance with Planning Policy. He repeated the call for all parts of the LRIE and football facilities to be seen as part of a single project in terms of business planning and development management.

Councillor Vickers indicated that the Liberal Democrats would have fast-tracked the site investigation with outline planning years ago. He acknowledged this would have cost more up-front, but he felt it would have provided additional certainty in planning policy and development cost terms. Contamination on the site would make it costly and challenging to build out. He noted that under EIA regulations, the cumulative impact of the LRIE proposals, meant that this work should be undertaken prior to / as part of the outline planning application.

He felt that there was no case for the current planning application, other than to continue to prevent football at the site. Regardless of whether the football ground remained in Faraday Road or not, he indicated that the Executive was duty bound to act as community leaders by following or exceeding planning policy.

He considered that Executive had set a bad example and that it was OSMC’s job to say so.

Councillor Adrian Abbs noted that biodiversity net gain was part of the National Planning Policy Framework (NPPF) and therefore part of local policy. He indicated that there was significant risk associated with the project, as highlighted in the Avison Young report, which put the Council in a terrible position to meet the biodiversity net gain requirement. The Chairman indicated that he considered the point to be outwith the terms of the Motion and that Councillor Abbs should not introduce new reasons.

Councillor Abbs observed that a change of use of the site had taken place and that other developers would not be allowed to do this without going through the planning process. He suggested that submission of the planning application was evidence that Executive had made a decision in relation to the football ground site. He indicated that the motion referred to Policy CS18 and OSMC was being asked to consider whether the Executive was doing things in accordance with policy, which he felt they were not.

Councillor Vickers highlighted that biodiversity was mentioned in paragraph 5.125 of Policy CS18. He indicated that the concept of biodiversity net gain came in after the Core Strategy had been adopted, but as current national planning policy, it was relevant, and would apply where there was no adequate local policy in place.

The Chairman cautioned against focusing solely on planning, since this was not within OSMC’s remit.

Councillor Lee Dillon considered Councillor Abbs’ comments to be consistent with the terms of the motion without expanding the remit of the debate. Also, he noted that when the application went before the Planning Committee, and Members of the Executive (as promoters of the site) were asked about costs, they were told there was no need to answer, since it was a policy question. He noted that the motion tabled to Council had been referred to OSMC without the  Chairman’s blessing and suggested that when there was any opposition to LRIE, attempts were made to obfuscate the argument and push it to a committee where only half the points would be relevant. He suggested there should be a full and open debate where the opposition could highlight where they believed the Executive had put forward proposals that were contrary to planning policy.

Councillor Dillon felt that the Council should be leading by example in terms of promoting best practice, and that the motion included evidence of where the Council had not acted in accordance with Core Strategy policies, specifically in terms of the loss of GI.

He questioned the timescale for delivering the replacement grass pitch and noted that the location had not been confirmed.

Councillor Dillon suggested that there should be a full and transparent conversation about provision of football facilities as part of a single set of policies, which could be the subject of public consultation, and would provide clear direction for the local planning authority.

He disagreed with how officers had evaluated this motion and suggested that they did not have sufficient knowledge about the policies it referred to.

The Chairman referred to the motion, which criticised the Executive and did not relate to planning aspects of LRIE, which would be heard by the LPA. He acknowledged that it was a difficult matter to assess, but indicated that there were ‘Chinese walls’ used to separate the Council as developer and LPA and that the Council worked hard to maintain these. He highlighted that it was up to the LPA to decide if a proposal was contrary to Planning Policy and if so, whether there were mitigating circumstances.

The Chairman asked Cllr Dillon to provide details of the particular date that the Executive had taken the decision to which he objected. Councillor Dillon was unable to provide a date, but suggested that the fact there was a planning application submitted for the site showed that a decision had been taken. He also referred to the Avison Young plan, which referred to the football ground as the first phase of development.

The Chairman agreed that a decision had been taken and that there was a clear statement about the preferred direction of travel, but this was subject to planning permissions.

Councillor Dillon indicated that he believed this to be in breach of planning policy. This could not be raised at Planning Committee, so he wanted a debate to show how the Executive was proposing ideas that were contrary to policy. He suggested that the recent fire at the football ground and subsequent demolition was a de facto illegal change of use, and it would be up to the LPA to take enforcement action against the Council.

The Chairman suggested this was a tortuous argument that made assumptions and OSMC was not in a position to know what the LPA might say on the matter.

Action: Councillor Dillon confirm with LPA officers if an illegal change of use had taken place.

Councillor Howard Woollaston affirmed the Administration’s position of wanting to see economic development on the LRIE, which had been a long-held policy was in their manifesto. Detailed discussions had taken place with Sport England, the Football Association and the Rugby Football Union about local sports provision set out in the Playing Pitch Strategy, approved in 2020.

He explained that alternative sites had all been discounted. Approaches had been made to landowners including Newbury Rugby Club (NRC), who had previously declined, but had subsequently changed their minds. A report had been taken to Executive on 19 February, which had sought consent to maintain discussions with NRC. A deal was agreed and an application submitted for an artificial pitch, which could be used for 80 hours a week rather than 8 hours a week for the grass one at Faraday Road. He noted that the proposal included a new clubhouse and much better facilities.

The Football Association and Sport England had confirmed that an additional grass pitch was needed as well. Two alternatives had been considered and proposals were being developed to a stage where planning applications could be submitted and the public consulted. Councillor Woollaston noted that it was not appropriate to consult the public when there was uncertainty about the feasibility of the new pitches.

He indicated that the Executive had operated within proper bounds as the owner of the Faraday Road site and suggested that the motion be rejected.

Councillor Vickers noted that the Executive had made decisions every time they considered a matter related to LRIE going back to 2013 when Strutt and Parker had been engaged. He suggested that it was difficult for the public to discern the Chinese walls in place between the Council as developer and LPA.

The Chairman indicated that the motion should have referred to a date on which a decision was taken. Councillor Vickers indicated that the main decision had been taken in December when the masterplan had been signed off, but there was still no policy to support it.

Councillor Steve Masters indicated that another key decision date was when the community groups were evicted from the site three years previously.

Katharine Makant noted that the motion stated the Executive had acted outside of existing GI policies in relation to the Faraday Road football club site and it also referred to the proposed new site on Monks Lane. She stated that much of the discussion had been focused on planning issues. However, there was no substantial planning application for LRIE, only for the demolition of the clubhouse and the creation of a temporary playing field, which would be open to all. This would be determined by District Planning Committee on 8 September 2021. A planning application for a new facility at NRC was being processed. She indicated that any challenge to the decisions of those committees would be subject to the planning regime. Consequently, it was recommended to reject the motion on the basis that the decision was for the planning committee.

Councillor Claire Rowles noted there was a blurring of the lines between the Council as landowner and LPA. She was concerned that OSMC was asked to scrutinise a decision that had not been taken. She disagreed that the Council was in breach of planning policy and suggested that Councillor Vickers was at risk of pre-determining the application.

The Chairman noted that individual Members needed to take legal advice and act accordingly. He stated that the Council had acted within its rights as a landowner not to renew the lease on the football club site, but if it wanted to do something else with the site, then it would need to go through planning. He noted that the opposition had different aspirations for LRIE. Although the football ground was just one small part of it, the debate kept coming back to the wider development proposal. He reiterated that the Motion was specifically focused on Executive decisions relating to the football pitch.

Councillor Vickers agreed that the public needed to know where Members had conflicts of interest and confirmed that he would arrange a substitute for District Planning Committee and hoped that Executive Members would do likewise. He indicated that it was possible to have a committee with no Members from the Executive or Newbury Town Council, thus removing any conflicts of interest.

Councillor Masters suggested that there may be future occasions where scrutiny would be required on LRIE and asked where the debates should take place. He agreed that several Members would have conflicts of interest and supported the idea of using substitutes to address this.

The Chairman stated that OSMC was not legally permitted to scrutinise planning decisions, and the Local Plan was scrutinised at Full Council and was also subject to an Examination in Public chaired by an independent inspector. Shiraz Sheikh confirmed that OSMC’s powers did not extend to planning decisions. He also reiterated that the Motion referred to Executive acting outside of the Council’s policies, which was why it had been referred to OSMC.

Councillor Masters asked Members of OSMC how confident they were that they would not face legal challenges moving forward. The Chairman stated that decisions were informed by legal advice, but developers and others with vested interests would challenge everything. The important thing was to be able to justify decisions when they were challenged. He indicated that the Council would never intentionally open itself to challenge.

Councillor Abbs took issue with the reasons given to reject the Motion and noted that Policy CS18 used the word biodiversity at least twice and by closing off debate on this aspect, OSMC was making a decision based on incomplete information. The Chairman noted that the main point of Policy CS18 was not related to biodiversity.

Councillor Dillon asked if the Executive had not made a decision, then how had a planning application been submitted. He indicated that if OSMC was to agree with the Motion, then they would be ruling that the Executive had acted contrary to policy, but the argument presented was that because it had not been determined by the Planning Committee, no decision had been made. He noted that when the Motion had been tabled, the date for the application going to Planning Committee had not been agreed. He argued that the fact there was a proposal meant that a decision had been taken that was contrary to Policy CS18.

The Chairman noted that a Motion was a procedural device and stressed the need to avoid a political debate.

Councillor James Cole highlighted that each planning application had to be treated on its own merits, so this application would not necessarily set a precedent. He accepted that there had previously been challenges relating to the site and that there were strong feelings on the matter within the local community. However, he noted there was an alternative site identified, which had satisfied Sport England. He pointed out that it was not a new proposal and he was glad that decisions were being made on direction of travel and working towards a better football facility.

Councillor Dillon asked Councillor Cole if he agree that Executive had made decisions. Councillor Cole agreed that they had been made on direction of travel only.

Councillor Rowles felt that the motion had to be rejected on the basis that no decision had been made.

Councillor Tom Marino agreed with Councillor Rowles and indicated that he was unable to support the Motion.

Councillor Vickers considered that the Executive had made decisions and committed funds over many years, with good intentions, but with minimal concern for existing planning policies. He agreed that Executive were not able to make decisions on planning policies, since that was a matter for the LPA. He suggested that the wording of the Motion was potentially confusing, but in his view, the Executive had acted and made numerous decisions, notably when it adopted a Masterplan that its own consultants had indicated was contrary to planning policies.

The Chairman stressed that OSMC should not have a debate about the pros and cons of LRIE. He accepted that it was difficult for the press and public to understand that the Council was acting in two different capacities as developer and LPA. He reiterated the point that many developers put forward proposals that could be considered contrary to planning policies and not all were turned down, since in some cases the planning balance may outweigh the negative aspects. This would be determined by the planning committee. He noted that the report indicated that the motion was not valid.

Councillor Dillon sought clarification that the new recreation ground would be for all sports. Katharine Makant confirmed that it would be open to all users for all sports.

The Chairman invited Members to vote on the Motion as presented in the report. At the vote the Motion was rejected.

Resolved that: the Motion be rejected on the basis that, as no decision had been made on the former football club site at Executive, it could not be said that the Executive had acted outside of the Council’s existing policies in terms of Green Infrastructure. The decision on planning application ref 20/02402/REG3 and on the recently submitted planning application for the Sports Hub at Newbury Rugby Club was for the appropriate Planning Committee, not Executive, and Overview and Scrutiny Management Commission was not able to review or scrutinise decisions taken by Planning Committees.

Action: Councillor Dillon to submit a request in writing to Executive to provide a chronological list of all decisions made by Executive in relation to LRIE, including when the decision had been made to submit the planning application for the football ground.